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Summary

The claimant had health problems, including a severe ankle injury and depression. He failed the work capability assessment. The First-tier Tribunal rejected his appeal, holding that he did not score points for mobilising, as he used an electric wheelchair on occasions, and that he would be able to propel himself in a manual wheelchair. The tribunal rejected the argument that on the evidence his asthma would cause breathlessness when propelling himself.

Judge Williams rejected the claimant's further appeal, holding that on the facts of the case the tribunal had not erred in law. In so doing, he reviewed the caselaw on the application of Activity 1 (mobilising unaided), in particular with regard to the question of ability to use a manual wheelchair unaided. There was a reasonableness test as part of this question. There were practical problems in considering this, as neither the ESA50 self-assessment questionnaire nor the standard ESA85 electronic medical report addressed directly the question of whether the claimant could use a manual wheelchair if one was not normally used (paragraphs 12-13). For Judge Williams, reasonableness had to include not only the ability to self-propel, but also the ability to get in and out of the wheelchair unaided and to handle the wheelchair unaided when not in it (paragraphs 32-36).

Regarding the caselaw, the judge contrasted the approaches taken by Judge Gamble in DM v SSWP [2012] UKUT 376 (AAC), in which it was held that personal circumstances such as ability to store a wheelchair were relevant, with the rejection of that most recently by Judge Gray in TB v SSWP, holding that the reasonableness test was limited to medical issues. Siding with Judge Gray but with a caveat, Judge Williams said:

I agree with Judge Gray to the extent that putting an 'all the circumstances' test into the descriptor carried the danger of testing the context too widely. I disagree with her in what appears to be a constrained view of the 'medical consequences', which I take to include mental health issues as well as physical issues. I agree with that. But it has to be asked in every case whether this particular claimant can reasonably mobilise with a manual wheelchair without the assistance of any other personas a practical question... the user has to be able to get into it and out of it unaided and has to be able to deal unaided with the other aspects inherent in using a wheelchair to mobilise. That involves looking broadly at the whole physical and mental functional ability of the claimant and not merely at lower limb use (paragraph 38).

Summary

The claimant had been in receipt of income-based JSA, but following an assault claimed income-related employment and support allowance (ESA) instead, asking for it to be backdated to the date of the assault and disclosing to the jobcentre that he was in receipt of income-based JSA. The JSA award was superseded shortly after so as to remove entitlement from the date of the backdated claim for income-related ESA. The claimant received arrears of ESA from the backdated claim, but later also got a decision that he had been overpaid JSA which was recoverable from him. The First-tier Tribunal dismissed the claimant's appeal on the grounds that, although he had not caused the overpayment through failure to disclose anything, the Secretary of State had an 'absolute' right to recover such overpayments under s74(2) and (4) of the Social Security Administration Act 1992.

Allowing the claimant's further appeal, Judge Rowland held that the tribunal erred in deciding that section 7 4(2) and (4) applied in this situation. As the Secretary of State now submitted, it did not, because that was concerned with cases where a claimant in receipt of an income-related benefit was now entitled to arrears of another benefit (or payment from public funds) that would have been taken into account as income had s/he been paid timeously, and so reduce the amount of the benefit. But they were not the facts here, which instead concerned a situation where the claimant had actually become entitled instead to another income-related benefit altogether; moreover, ESA cannot be paid at the same time as· JSA and the JSA award was superseded because it had been decided that the claimant had limited capability for work, which meant there was no entitlement to JSA at all (paragraph 10). The overpayment in this case was due to an administrative error and was not recoverable under the 1992 Act at all (paragraph 12).

What should have happened in this case was that the overpayment of JSA should have been treated as a 'payment on account' of ESA, and so deducted from the ESA arrears before payment, under regulation 5(1) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988, SI No.664 - but that had not happened (paragraphs 8-9).

Summary

The claimants were entitled to working tax, credit (WTC) as a couple. The husband worked 16 hours a week; he ceased work in June 2010 but his wife started working 16 hours a week a few days later, with no change in household income. The couple considered that there was no need to report the change as it could not affect their joint entitlement. Consequently, the change was not notified until July 2011. When notified, HMRC decided that there had been a duty to report the change at the time, and terminated the joint claim four weeks after the husband stopped work; also, a new claim was necessary on the basis of the wife's employment. As that could only be backdated for three months from notification of the employment in July 2011, there was a consequent gap in entitlement from July 2010 to April 2011. The claimants' appeal was dismissed by the First-tier Tribunal.

Judge Mark allowed their further appeal and held that they had remained entitled to WTC throughout. HMRC and the tribunal had erred in law in holding otherwise. Firstly, under section 3(4) of the Tax Credits Act 2002, entitlement under a joint claim ceases if the person by whom it was made could no longer make a joint claim; but there is no provision for the claim to cease simply because there is a change of circumstances if the couple remain entitled to make a joint claim (paragraph 7). Secondly, under regulation 21 of the Tax Credits (Claims and Notifications) Regulations 2002, SI No.2014, there is a requirement to notify certain changes of circumstance which may decrease the rate of entitlement or mean that entitlement should cease. But in this case, the claimants had remained part of a couple, and although at regulation 21 (2) there were convoluted cases regarding cessation of entitlement where a person stops work for at least 16 hours a week, HMRC had attempted no explanation of how that might apply here, and in any case, considered the judge, even if it did apply so that they should have reported the change, there was no evidence that it would have affected the award so as to cease entitlement (paragraphs 11-12).

Summing up, the judge held, 'given that the claimant and his wife never ceased to be entitled to a tax credit and that because all the work was done for the same reward, I am unable to follow on what basis there was any power to terminate the award. Even if there was a change in the amount of remuneration, provided this was such as to leave some reduced entitlement to the award, this would only have entitled HMRC to amend the award and not to terminate it' (paragraph 13). Therefore, the final decision in this case should have been, 'on the basis that the original award continued and that the couple were jointly entitled to the tax credit for the whole year and that the amount should be calculated on that basis' (paragraph 14).

Decision in brief

Tribunal placed too much evidential weight on statutory declaration in holding that there had been a previous marriage- erred in adopting generalised assumption that the contents of such a declaration are presumptively true and require a high degree of rebuttal - on facts of this case, evidence that there actually had been a previous marriage was weak and was evidence that it was a fiction.

Summary

In these joined cases, a three-judge panel of the Upper Tribunal considered whether alleged failures to properly notify claimants of incapacity benefits that their claims were to be converted to claims for ESA meant that the subsequent 'conversion decisions' (which here involved being refused ESA for failure to satisfy the work capability assessment) were invalid. The Upper Tribunal held that the subsequent decisions were not invalid. The notifications were not in fact invalid, but even if they were the claimants were not disadvantaged.

In each of the three cases, the claimants had been on income support (IS) on the basis of incapacity for work. Their appeals against decisions that those awards did not qualify for conversion to ESA centred on the contention that they were not 'notified persons' for the conversion process, a provision at regulation 4 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010 No.19O7. In particular, regulation 4(3) provided that a notified person must be informed that her/his existing award would be converted to one of ESA if 'certain conditions are satisfied'. The notifications, argued the claimants, did not meet that requirement as they did not contain sufficient details on the basis conditions of ESA entitlement. It was also argued that the claimants concerned did not in fact receive any notification under regulation 4. For all these reasons, it was argued, the subsequent refusal to convert their IS awards to ESA and concurrent termination of IS entitlement (the conversion decision) was invalid.

Judges Charles, Rowland and Gamble rejected those arguments. The conversion decisions were not invalid. In general observations, the Upper Tribunal held that although the claimants asserted that they had not received the notifications under regulation 4, all of them filled in the work capability assessment questionnaire (ESA5O) and attended an examination by a healthcare professional. It was 'difficult to see what difficulty, prejudice or unfairness could be caused by not receiving a regulation 4 notice' (paragraph 24). Regarding the adequacy of the notices, in most cases (certainly where, as in the present cases, the claimant was in Great Britain), the only basic condition of ESA entitlement that was relevant to the conversion process was the requirement to have limited capability for work; regulation 4(3)(c) did no more than require that it must be clear to claimants that they must have limited capability for work, and the notification did comply with that even before the modifications to the wording subsequently introduced by the DWP (paragraphs 37, 40 and 45). As to the point that the claimants had not actually received the notices, the Upper Tribunal did not consider that essential. The information given by the regulation 4 notice was not something claimants were required or expected to act on; the issue of the notice did not bring about a change in their substantive rights, and was more properly regarded as part of the administrative process (paragraphs 51-54). It was sufficient, in the context of these rules, that the regulation 4 notice was generated and sent out by the DWP; and it was not actually required that it was received for it to be regarded as 'issued' (paragraph 58). Overall any failure or defect on the regulation 4 notice (ie, even if the Upper Tribunal was wrong on the preceding points) would not result in any unfairness or other injustice, and so any breach of regulation 4 on grounds of inadequacy 'did not result in any subsequent conversion decision being invalid' (paragraph 69). It was also 'common ground' that even if the Upper Tribunal was wrong, any defect in the regulation 4 notice would have been remedied by whenever the revised notification (in Forms IBM350 or ESA51), in use from 16 August 2012, was sent out with the ESAS0 questionnaire (paragraph 60).

Summary

In this judicial review decision from the Upper Tribunal, it is held that the work capability assessment process places claimants with mental health problems at a substantial disadvantage, by reason of the failure of that process to obtain further medical evidence at an early stage. The Secretary of State was under an obligation to make 'reasonable adjustments' under section 20(3) of the Equality Act 2010 to remedy that. However, the decision does not require the DWP to seek further medical evidence in every case. Instead, it directs the DWP to investigate how to implement changes so that decision makers are required to consider the need for further medical evidence in mental health cases and justify a decision not to seek further evidence.

It was argued for the claimants that under section 20(3) of the Equality Act, to prevent substantial disadvantage to claimants with mental health problems, the Secretary of State was obliged to seek further medical evidence at an early stage in the work capability assessment in every case in which the claimant had a mental health problem. The Secretary of State argued that he was not so obliged. It was accepted that under current practice the seeking of further medical evidence was made only in a small number of cases (eg, where support group membership may be established by further evidence, where there was an appointee or where there was evidence of attempted suicide or self-harm - paragraph 50). The Secretary of State pointed to safeguards for claimants with mental health problems, such as ensuring failure to return the ESAS0 questionnaire in mental health cases was referred first to a health care professional rather than direct to a decision maker (paragraph 37), and ensuring that where a claimant with a mental health problems fails to attend a medical, the decision maker will attempt to contact her/him by telephone and if appropriate arrange a home visit before making a decision (paragraph 45).

For further medical evidence, however, it seemed to the Upper Tribunal that the Secretary of State was maintaining his position that present practice did not require 'reasonable adjustments' and that such evidence was requested where appropriate. However, he accepted the recommendation of Professor Malcolm Harrington in his third report on the work capability assessment that 'decision-makers should actively consider the need to seek further medical evidence in every claimant's case. The final decision must be justified where this is not sought'. That was different from a requirement always to seek further medical evidence in every case, but did require a decision not to seek it to be justified. Nevertheless, the Upper Tribunal considered that what the DWP was doing abou1 that 'falls well short' of investigating and assessing the recommendation regarding claimants with mental health problems (paragraphs 66-81).

In the Upper Tribunal, Judges Charles, Jacobs and Lane held that the duty under section 20(3) was a generic test, and that on that basis the present practice resulted in a significant number of claimants with mental health problems being placed at a 'substantial disadvantage' and/or suffering an 'unreasonably adverse experience'. However, it was not reasonable to expect as a remedy that the Secretary of State seek further medical evidence in every case. The Upper Tribunal considered that instead an assessment ana trial along the lines of the recommendation of Professor Harrington was most appropriate (paragraph 157). At present there was not sufficient evidence to enable the Upper Tribunal to determine what changes in the work capability assessment process would be reasonable to avoid the substantial disadvantage, and so the Secretary of State was directed to take 'defined steps, with a defined period' to investigate and assess changes in practice regarding claimants with mental health problems (paragraph D of the Index and Overview to the decision).

Note: The Secretary of State intends to appeal

Summary

The claimant was sent a decision in a letter headed 'Notice of Overpayment' presenting a 'decision' that she had been overpaid IS and had to pay it back. The reason for the overpayment was money in an undisclosed bank account. The claimant appealed, arguing that she had no knowledge of the money. The First-tier Tribunal dismissed the appeal.

Judge Fordham QC allowed the claimant's further appeal, and substituted a decision that the allegedly overpaid IS was not recoverable because there had been a valid supersession of the claimant's award - ie, so as to bring her entitlement to an end. However, that was not to prejudice the Secretary of State's ability to take further steps to comply with that so as to recover the alleged overpayment, or the claimant's ability to make a fresh appeal about that.

The reason the overpayment was not recoverable was that the judge considered in this case there had been no valid supersession, so that the main overpayment rule at section 71 of the Social Security Administration Act 1992 was not complied with. Specifically, the requirement at subsection (5A) that the award of benefit was changed on appeal, revision or supersession was not met 0n effect, that usually requires a supersession and that was certainly so in the present case). The judge held that for recovery to be lawful there had to have been not only a 'recoverability' decision but also an 'entitlement' decision - ie, one changing the claimant's entitlement. That required that the Secretary of State 'must have notified the entitlement decision' and that should be done 'before the recoverability decision' (paragraphs 4-6). In so holding, the judge commented on the decision of the Northern Ireland Court of Appeal in Hamilton v Department for Social Development [2010] NICA 46. That held that it was possible for there to be a 'two pronged' decision or 'simultaneous dual notification' in which the entitlement decision and the recoverability decision were notified in the same decision. The judge confessed to doubts as to the correctness of that (paragraph 13), but held that, insofar as a 'two pronged decision' can be sufficient, 'the notification would need to be clear' - ie, in communicating two decisions both of which carried the right of appeal (paragraph 14). In the present case, the letter sent to the claimant did not do that: it was in the singular (speaking of a 'decision'), referred to itself as an 'overpayment decision' and did not cite the law involved in a supersession decision (paragraph 16).

Comment from CPAG

This decision, in an appeal supported before the Upper Tribunal by the Secretary of State, further clarifies that the claimant must be aware both that her/his entitlement has been changed and that the subsequent overpayment is considered to be recoverable, and of her/his Tight of appeal against both decisions. That is best done by separate notification; although the decision demurs from holding that the 'two pronged' approach described in Hamilton is actually wrong, as long as the separate decisions are clear. Under Welfare Reform Act 2012 changes, overpayments of universal credit, jobseeker's allowance and employment and support allowance since 29 April are all recoverable, but there must still have been an alteration of entitlement - ie, usually on supersession.

Summary

The claimant had been out of hospital following an operation for around three weeks when she was assessed under the work capability assessment. Although she was treated as having limited capability for work on the basis of recovery from in-patient treatment, she was not assessed as having limited capability for work-related activity - ie, she was not put in the support group. The claimant appealed against that as well as a number of aspects of the decision. The First-tier Tribunal dismissed her appeal, saying in the decision that it was satisfied that the claimant did not meet any of the relevant descriptors in the test for work-related activity.

Judge Wright allowed the claimant's further appeal and remitted the case for rehearing by a new tribunal. The main error in the tribunal's decision was the failure adequately to explain why it considered that (given that she was only recently out of hospital) there was no 'substantial risk' to her health or that of another person, as referred to in regulation 35(2)(b) of the Employment and Support Allowance Regulations 2008, SI No. 794 (paragraph 12). A related but equally important error was that the tribunal had failed to identify, as required by the decision of Judge Jacobs in AH v SSWP [2013] UKUT 118 (AAC), the 'range or type of work-related activity' that the claimant was capable of performing and might be expected to undertake (paragraph 13). Judge Wright endorsed AH v SSWP in this regard.

The tribunal was hampered in that task by the failure of the Secretary of State to provide this information. For Judge Wright, the failure by the Secretary of State to put this information before the tribunal 'was a mistake and a serious breach of his duties' to the tribunal (paragraph 15). The claimant had expressly raised as a ground of appeal whether she came within regulation 35(2)(b) (ie, whether the substantial risk provision applied to her), and the Secretary of State had accepted that this was an issue raised by the appeal. In those circumstances, the Secretary of State was obliged under rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 to say whether he opposed the claimant on this point and, if so, state any grounds for that opposition not already in documents before the tribunal. His failure to do this was 'a serious breach' of his obligations under the rules. He should have set out the range or type of work-related activity the claimant was capable of performing and might be expected to undertake and explain why there would be no substantial risk to the claimant's or another person's health were she not found to have limited capability for work-related activity (paragraphs 17-20).

Summary

An overpayment of HB arose because the claimant left the property. He did not notify the local authority of that. The HB had been paid direct to the landlord. The local authority decided that the overpayment was recoverable both from the claimant and the landlord. The landlords appealed, arguing that they were unaware that the claimant had left, and that consequently the overpayment was not also recoverable from them. The First-tier Tribunal allowed the landlords' appeal.

Judge Rowland rejected the further appeal of the local authority, holding that on the facts as found by the tribunal, the decision was not wrong in law. The local authority's attempt to argue about the facts found by the tribunal was misplaced: appeals to the Upper Tribunal could be founded only upon errors of law, not upon attempts to reargue the factual issues in the case (paragraphs 8-14). The local authority also argued that the tribunal had misapplied regulation 82 of the Housing Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006, SI No.214. Firstly, it was argued that the tribunal had erred in that exemption from recovery for landlords was provided for only in subparagraph (1), whereas the tribunal had exempted them under subparagraph (2)(b). That subparagraph provides that where an overpayment arose due to misrepresentation or failure to disclose a material fact, it is 'only' recoverable from 'any' person who misrepresented or failed to disclose. But that, held the judge, would be to construe the law in a way already rejected in R(H) 6/06 (paragraph 16). The judge accepted that on the facts found by the tribunal, regulation 82(2)(b) did apply in this case (paragraph 17).

The local authority alternatively argued that subparagraph (2) should be read in such a way that a landlord could be regarded as having contributed to the overpayment via negligently not checking whether the claimant was still resident. That, held the judge, was not permissible, as it would involve 'considerable violence' to the language of the subparagraph, would contradict the natural construction given to it in (for example) MP v London Borough of Greenwich (HB) [2012] UKUT 88 (AAC) and, in any case, it was not clear how such a reading could work (paragraph 23). Nor was there any basis for holding that the landlords had in fact failed to disclose the fact that the claimant had left, as it was found that they did not know that, and in law a person cannot fail to disclose something that they do not know, and there was no duty on a landlord to take steps to discover facts (paragraphs 25-29).

Summary

The claimant suffered from a heart condition called mitral stenosis, with associated pulmonary hypertension. She could walk over 100 metres in about 10 to 12 minutes before she had to stop due to breathlessness. She had been entitled to the high rate of the mobility component but this was not renewed on the renewal claim. Her appeal was dismissed by the First-tier Tribunal, who held that she failed to come within, as she had contended, regulation 12(1 )(a) of the Social Security (Disability Living Allowance) Regulations 1991, SI No.2890.

Judge Turnbull rejected the claimant's further appeal. It was accepted that she was not unable or virtually unable to walk and so did not come within subparagraphs (i) or (ii) of regulation 12(1 )(a). However, it was contended that she came within subparagraph (iii) on the basis that the 'exertion required to walk would constitute a danger to [her] life or would be likely to lead to a serious deterioration in [her] health'. Rejecting that, the judge held that 'the only sensible construction of limb (iii) is that it is implicit that the constraint on the claimant's walking imposed by the danger to life or health must be such as to render him unable or virtually unable to walk' (paragraph 17). On that approach, the claimant did not satisfy the test.

In so holding, he rejected alternative constructions to the effect that the danger is that which would occur were the claimant to walk what would be for a person of the claimant's age and sex normal distances at normal speeds (a construction which had been adopted in CDLA/3420/2005), or that the danger is that which would occur in such walking as the claimant could achieve without severe discomfort. Either of these constructions, held the judge, could lead to anomalies in which a claimant who could walk several hundred yards before experiencing severe discomfort could qualify, via subparagraph (iii), for the high rate of the mobility component (paragraphs 11-15).

Decision in brief

Entitlement can be restored from 18 October 2007 but not before - decisions removing entitlement before date of ECJ decision in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05 [2007) ECR 1-8695 on 18 October 2007 cannot be revised for official error - decision of the ECJ a court decision and so excluded from definition of official error for purposes of revision - earlier (2001) decision in Jauch did not establish that CA and DLA care component were exportable - even if there had been official error, claimants were outside the absolute time limit for an appeal against a refusal to revise

Note from CPAG

In BD v SSWP (DLA) [2013] UKUT 0216 (AAC) (CDLA/2972/2011), the same judge held that if the decision removing entitlement could nevertheless be revised (eg, for something that was official error, such as an incorrect effective date), that 'opens the door' to a full consideration of the proper decision that should have given - ie, including that the CA/DLA care was exportable (paragraph 15). Appeals still need to have been made within the absolute time limit; however, there is no time limit for the Secretary of State deciding to carry out a revision for official error.

Decision in brief

Restriction of HRP to those in receipt of UK child benefit, in conjunction with presence/residence test for child benefit, acts a restriction on right of free movement in the EU and not objectively justified - on facts of present case Article 21 Treaty on Functioning of the European Union and EC Regulation 1408/71 requires Secretary of State to take account of claimant's child-raising period in Belgium as if that had been completed in UK and her pre-existing award of child benefit had continued